Bad Faith Required Before Any Assessment of Attorneys’ Fees Against Beneficiary’s Share of their Inheritance

In the law, the American Rule, which controls assessment of attorneys’ fees arising out of litigation, provides that each party is responsible to pay its own attorney’s fees unless specific authority granted by statute or contract the assessment of those fees against the other party. Under the American rule every party, even the winning party, must pay its own attorneys’ fees. The American rule contrasts with the English Rule, under which the losing party pays the prevailing party’s attorneys’ fees. The rationale for the American rule is that people should not be discouraged from seeking redress for perceived wrongs in court or from trying to extend coverage of the law. The rationale continues that society would suffer if a person was unwilling to pursue a meritorious claim merely because that person would have to pay the defendant’s expenses if they lost.

Does the American Rule apply in the context of Florida Probate?

The Florida Probate Code, at Section 733.106, provides that any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.  This section also provides that when costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. Read the rest of this entry

Attorneys who represent the personal representative or otherwise provide services to the probate estate are generally entitled to fees as allowed under the Florida Probate Code. Fla.Stat. §733.6171. In order to be entitled to fees, however, the attorney, or anyone else (like an accountant) seeking fees from the estate must show that the services provided were beneficial to the estate. What constitutes a “benefit” to an estate is often subject to debate, but most will agree that an attorney benefits an estate by bringing about an enhancement in value or an increase in the assets of the estate or by aiding in establishing the intent of the decedent and the proper division of the estate generally. A good discussion of what benefits an estate can be found in Segal v. Levine, 489 So.2d 868 (Fla.3d DCA 1986). Read the rest of this entry

Court of Appeals Says Curator Cannot Impose Lien on Occupied Homestead Property

What is a Curator?

Sometimes curators are appointed by the probate court to administer the estate under certain circumstances where a personal representative or executor cannot serve. There are a variety of these situations, but what always remains the same is the general duty of the curator to collect the testator’s effects, pay claims against his estate, and distribute the residue to those entitled. Also uniform, is the well settled law in Florida that curator or personal representative does not have an unrestricted right to use estate assets as his own, and the probate code provides that assets of an estate shall be assets in the hands of personal representative or curator for specific purposes only, with significant restriction that he or she act reasonably for the benefit of the interested persons. A curator’s possession of estate assets derives from his appointment and is not an individual right of possession; thus, the personal representative or curator acquires interest solely as fiduciary, holding legal title, but the representative does not hold beneficial title to assets and has no right to dispose of estate assets for his own use. Read the rest of this entry

Fifth District Court of Appeals Encourages Legislature to Clarify Statute

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]” Read the rest of this entry